KIM (Migration)

[2022] AATA 3665

KIM (Migration) [2022] AATA 3665 (29 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jason Yong Wan KIM

REPRESENTATIVE:  Mr Timothy Young (MARN: 0021560)

CASE NUMBER:  1819429

HOME AFFAIRS REFERENCE(S):          BCC2017/1684599

MEMBER:Russell Matheson

DATE:29 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 29 September 2022 at 7:08am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased and non-judicially determined claim of family violence – financial abuse – statutory declaration by applicant but no specified supporting evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(b), (d), 65
Migration Regulations 1994 (Cth), rr 1.21, 1.22, 1.23(8)-(14), 1.24(b), 1.25, Schedule 2, cls 820.211(2)(a), (8), (9), 820.221(1), (3)(a), (b)(i)

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of the United States of America (USA), born in April 1968. He applied for the visa on 11 May 2017 based on his relationship with his sponsor. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not meet       cl.820.221(2)(a) because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant informed the Tribunal that his relationship with the sponsor has ended and claimed he has suffered family violence committed by the sponsor. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 8 September 2022 to give evidence and present arguments.

5. The applicant was not represented at the hearing in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

7. The applicant is a national of the USA who first met the sponsor on 24 October 2016, after being introduced to her by his younger brother.  The parties began dating around this time and by 24 February 2017 they had moved in together.  On 30 April 2017, the parties were married and on 11 May 2017 the application for the partner visa was submitted to the Department.

8. On 19 March 2018, the sponsor advised the Department that she was withdrawing her sponsorship of the applicant.  On 30 April 2018, the applicant alleged family violence against the sponsor, specifically economic abuse.  The delegate of the Minister did not consider the claims of family violence as they found that there was not enough evidence to substantiate that the relationship was a genuine and committed relationship prior to its cessation.

   Relevant law

9. At the time the application was made, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Regulations.

10. Relevantly to this matter the primary criteria include cl.820.211 and cl. 820.221 which require that, at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.820.211(8) or (9) and cl.820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

11. Based on the evidence, the Tribunal is satisfied the applicant and the sponsor were in a partner relationship and that this relationship has ceased. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

12. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence, or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14).

13. In the present case the applicant is seeking to establish family violence based on a non-judicially determined claim of family violence.

    Has a claim of family violence been made under the regulations?

14. Under reg 1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with reg 1.24 is provided.

15. The applicant in this case is seeking to rely on evidence referred to in reg 1.24 – namely, a statutory declaration under reg 1.25 and evidence of a type and number specified by the Minister for these purposes and Legislative Instrument IMMI 12/116.

16. A statutory declaration under reg 1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: reg 1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: reg 1.25(3).

17. The applicant provided the following documentary evidence to the Tribunal that includes:

    ·A statutory declaration made by the applicant.

18. The Tribunal is not satisfied that the evidence presented meets the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23.

    Was the applicant the spouse of the sponsor?

19. The delegate was not satisfied that the applicant was the spouse of the sponsor. However, the Tribunal notes that a limited amount of documentary evidence has been presented with the application and the Tribunal has also had the benefit of the applicant’s oral evidence. Contrary to the delegate’s findings, the Tribunal has formed the view that the presented evidence does establish the existence of a genuine relationship between the applicant and the sponsor before its breakdown.

20. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and he has been the victim of family violence.

    Relationship

21. At the hearing the applicant stated that he had no additional documents to present to the Tribunal regarding his relationship with the sponsor. The applicant stated he was relying on the documents and information provided to the Department with the application to establish he was in a genuine relationship with the sponsor before the relationship ceased.

22. The applicant’s evidence in his written submission provided that the applicant first met the sponsor in October 2016, after being introduced to her by his younger brother.  The parties began dating around this time, eventually committing to the relationship and moving in together in February 2017. The sponsor has a daughter from a previous relationship. The parties provided a copy of their marriage certificate registered under the Marriage Act 1961 indicating the parties were married in Lidcombe on 30 April 2017.

23. The applicant submits that he was in a loving relationship with the sponsor and always tried to please her even when she became unreasonable at times when demanding money from him. The applicant also stated that he provided care and support to the sponsor’s daughter and paid her school fees and private coaching fees. He further submits that the parties were in a genuine and continuing spousal relationship until it ceased due to family violence perpetrated by the sponsor upon the applicant.

24. The applicant provided evidence of operating an ANZ Access Advantage and Online Saver joint account with the sponsor.  The Access Advantage statement provided indicates that the account was used for day-to-day living expenses and household bills. The applicant’s evidence is that he was employed as a painter and was paid in cash and that he gave his whole wage to the sponsor and was given minimum money to live on from the sponsor that was placed into the joint account. The applicant gave evidence that he supported the sponsor’s child financially by paying for her school fees and tutoring after school and she was given a $50 fortnightly allowance. The applicant provided a copy of an Energy Australia bill and NRMA car insurance letter in joint names addressed to their residential address in Cherrybrook.

25. The applicant submitted the parties shared the household responsibilities and duties as a couple. He further stated they shared the household chores such as cleaning, cooking, laundry, ironing and caring for their pet dog.  The applicant also provided limited evidence of correspondence addressed to the parties at their residential address when living together.

26. The applicant provided captioned photographic evidence of the parties’ social activities with family and friends and evidence of travel together to New Zealand. The applicant provided detailed and consistent evidence in relation to the social activities of the couple in his written submission. The Tribunal accepts that the parties planned and undertook joint social activities together during their relationship. The Tribunal accepts that the relationship was socially recognised by family and friends and they represented themselves to other people as being in a spousal relationship before the relationship ceased. The applicant provided four third party statutory declarations attesting to the genuineness of the relationship by the applicant’s brother and the sponsor’s long-term friend who give a reasonable insight into the inception and development of the relationship over time.

27. As previously stated, the applicant first met the sponsor on 24 October 2016, after being introduced to her by his younger brother. The parties began dating around this time and by 24 February 2017 they had moved in together in a committed relationship.  On 30 April 2017, the parties were married at Bankstown under the Marriage Act 1961. There is no evidence before the Tribunal that the marriage is not valid. The Tribunal accepts that the parties are lawfully married.

28. The applicant and sponsor provided written submissions expressing their love and affection for each other and their future. The parties provided evidence of supporting each other during traumatic events that occurred in their lives. The parties provided evidence of supporting each other physically and emotionally when dealing with the death of the applicant’s father and the support, comfort and care the applicant provided to the sponsor and her daughter during the healing process (mentally and physically) after being the victims of domestic violence.

29. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided by the applicant that the parties were in a spousal relationship, and they had a mutual commitment to a shared life to the exclusion of all others before the relationship ended. The Tribunal is satisfied their relationship was a genuine and continuing relationship and that they lived together or not separately and apart on a permanent basis during the relationship.

30. The applicant and sponsor provided detailed evidence in their written submissions regarding their relationship as a couple. The Tribunal found the parties statements overall, persuasive and credible. Having regard to all the circumstances of this relationship, the Tribunal is satisfied, on balance, that the applicant and the sponsor did have a genuine spousal relationship before its breakdown. The issue that arises on the evidence in this case is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

31. Based on the above, the Tribunal is satisfied that the applicant and sponsor met the definition of spouse in s 5F(2)(b)(d) of the Act.

32. Having regard to the entirety of the evidence before it, the Tribunal is satisfied that before the relationship broke down, the applicant and the sponsor did establish a joint household, represented themselves to others as being in a genuine relationship, and had a mutual commitment to the relationship which they considered to be a long term one. The Tribunal accepts the applicant has provided limited information regarding the financial and household aspects of the relationship.

33. Overall, based on the information provided, the Tribunal is satisfied that the requirements of s.5F are met at the time of application. Therefore, cl.820.211(2) is met.

    Has the applicant suffered family violence?

34. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature.  Under r.1.22 a reference to a person having suffered family violence is a reference to a person being taken under r.1.23 to have suffered family violence.  The Tribunal notes there is no evidence or claim made by the applicant for a claim of judicially-determined family violence as set out in r.1.23(2)-(7).  The applicant’s claim is instead related to non-judicial family violence. The applicant is required to provide the necessary evidence to establish a valid claim of non-judicially determined family violence under Regulation 1.24(b) of the Migration Act for a claim of family violence.  These requirements are set out in r.1.23(8)-(14).   The applicant is also required to provide a statutory declaration under Regulation 1.25 which deals with statutory declarations by or on behalf of the alleged victim of family violence.  The Tribunal notes that the current instrument IMMI12/116 specifies any consideration of a claim of non-judicial family violence requires that that a minimum of two different types of evidence be given along with the r.1.25 statutory declaration of the alleged victim.

35. The Tribunal stated to the applicant that if he wished the Tribunal to consider a formal claim of family violence then it must be submitted in the required form meeting the statutory evidentiary requirements.  The Tribunal said for it to consider a family violence claim the applicant must present and submit written evidence in the form of a statutory declaration as well as various documentation that details the family violence incidents, the perpetrator and the victim.  The Tribunal told the applicant that these included Police reports, social worker reports, psychologist reports, child welfare agency reports and medical reports.  The Tribunal asked the applicant if he had any such evidence, he wished to submit to make a formal family violence claim and he replied that he did not have any other documents to present. The applicant stated that he took anti-depressants for a month after separating from the sponsor.

36. The Tribunal has reviewed the applicant’s claim to have suffered family violence as an exception.  The exception is to the requirement for an ongoing spousal relationship: 820.211(2), (5) or (6). 

37. The Tribunal has reviewed the statutory declaration supplied by the applicant and signed 17 April 2018 (DF, Folio’s: 69-71). The Tribunal on balance considers the statutory declaration is a valid statutory declaration under r.1.25.  The Tribunal considers on balance the statutory declaration sets out the allegation of relevant domestic/family violence’, as defined in r.1.21. 

38. The applicant however has not provided further evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined family violence. This is because the applicant has not provided evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994 and as specified in Schedule 1 of the instrument IMMI 12/116. He has failed to provide the evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994 and as specified in Schedule 1 of the instrument IMMI 12/116 which requires a minimum of two items of evidence (and not more than one of each type of evidence).  He has only lodged the one item of evidence that meets the criteria of a valid claim, his own statutory declaration dated 17 April 2018. The applicant’s claim of family violence is not a valid claim.  

39. The Tribunal finds that the applicant therefore has not made a formal and valid claim of family violence that it can consider. Given this evidence, the applicant does not meet the alternative criteria in cl.820.221(3). 

40. Based on the applicant’s own evidence, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 820 Partner visa by the sponsoring partner, who in this case is an Australian permanent resident, who previously sponsored the applicant for that visa

41. Accordingly, the applicant cannot satisfy cl.820.221(1) 

42. At the time of decision, the applicant has made neither a judicially determined nor non-judicially determined claim of suffering family violence in accordance with r.1.23. Accordingly, the Tribunal has no valid claim to consider. The applicant cannot satisfy cl.820.221(3). 

43. Furthermore, on the evidence before the Tribunal, the applicant does not meet any of the other alternative criteria including that in relation to court orders and certain responsibilities in relation to children. 

44. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    decision

45. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    Russell Matheson
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21      Interpretation

    In this Division:

    independent expert means a person who:

    (a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and

    (b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.

    non-judicially determined claim of family violence has the meaning given by subregulations  1.23(8) and (9).

    relevant family violence means conduct, whether actual or threatened, towards:

    (a)the alleged victim; or

    (b)a member of the family unit of the alleged victim; or

    (c)a member of the family unit of the alleged perpetrator; or

    (d)the property of the alleged victim; or

    (e)the property of a member of the family unit of the alleged victim; or

    (f)the property of a member of the family unit of the alleged perpetrator;

    that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

    statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.

    violence includes a threat of violence.

    …

    1.23   When is a person taken to have suffered or committed family violence?

    (1)For these Regulations, this regulation explains when:

    (a)a person (the alleged victim) is taken to have suffered family violence; and

    (b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

    Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

    Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975

    (2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

    (3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.

    Circumstances in which family violence is suffered and committed — court order

    (4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

    (b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

    (5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — conviction

    (6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:

    (a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or

    (b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

    (7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence

    (8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

    (9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim is:

    (i)     a spouse or de facto partner of the alleged perpetrator; or

    (ii)     a dependent child of:

    (A)the alleged perpetrator; or

    (B)the spouse or de facto partner of the alleged perpetrator; or

    (C)both the alleged perpetrator and his or her spouse or de facto partner; or

    (iii)     a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

    (i)     the alleged victim has suffered relevant family violence; and

    (ii)     the alleged perpetrator committed that relevant family violence.

    (10)If an application for a visa includes a non-judicially determined claim of family violence:

    (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

    (b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

    (c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

    (i)     the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

    (ii)     the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

    (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

    (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

    (14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.